New South Wales v The Commonwealth

HIGH COURT OF AUSTRALIA

Barwick C.J., McTiernan, Gibbs, Stephen, Mason, Jacobs and Murphy JJ.

NEW SOUTH WALES v. THE COMMONWEALTH ;

(1975) 135 CLR 337

17 December 1975

Constitutional Law (Cth)—International Law

Constitutional Law (Cth)—External affairs—Territorial sea—Continental shelf—Sovereignty—Law vesting sovereignty in Commonwealth—Validity—Whether implementing Convention on Territorial Sea and Contiguous Zone and Convention on Continental Shelf—Whether territorial sea external to Australia—Whether colonies had proprietary rights in territorial sea—Whether States now include territorial sea—Effect on colonial boundaries of enactment of the Constitution—The Constitution (63 &64 Vict. c. 12), ss. 51 (xxix.), 122—Seas and Submerged Lands Act 1973 (Cth). International Law—Territorial sea—Continental shelf—Sovereignty—Australia—Whether sovereign rights vested in Commonwealth or States—Whether States have international personality—Convention on Territorial Sea and Contiguous Zone (Geneva 1958)—Convention on Continental Shelf (Geneva 1958).

Decisions

December 17.
The following written judgments were delivered:-
BARWICK C.J. The Seas and Submerged Lands Act 1973 (Cth) ("the Act"), passed by the Australian Parliament, came into operation on the date on which it received the Governor-General's assent, namely, 4th December 1973. The Act has several recitals. They are as follows:

"WHEREAS a belt of sea adjacent to the coast of Australia, known as the territorial sea, and the airspace over the territorial sea and the bed and subsoil of the territorial sea, are within the sovereignty of Australia: AND WHEREAS Australia is a party to the Convention on the Territorial Sea and the Contiguous Zone a copy of which in the English language is set out in Schedule 1: AND WHEREAS Australia as a coastal state has sovereign rights in respect of the continental shelf (that is to say, the sea-bed and subsoil of certain submarine areas adjacent to its coast but outside the area of the territorial sea) for the purpose of exploring it and exploiting its natural resources: AND WHEREAS Australia is a party to the Convention on the Continental Shelf a copy of which in the English language is set out in Schedule 2:"

The First Schedule to the Act contains the international Convention on the Territorial Sea and the Contiguous Zone and the Second Schedule contains the international Convention on the Continental Shelf. Each Convention was signed on behalf of Australia on 29th April 1958. Pursuant to Art. 29 of the Convention on the Territorial Sea and the Contiguous Zone, and the deposit of the requisite number of instruments of ratification or accession, that convention came into force on 10th September 1964. Pursuant to Art. 11 of the Convention on the Continental Shelf and the deposit of the requisite number of instruments of ratification or accession, it came into force on 10th June 1964. (at p358)

2. By s. 6, the Act declares and enacts that "the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth". The territorial sea is as it extends from time to time, the Governor-General having power from…